1. What changes are being made to the law to include virtual wills?
The legalisation of video-witnessing is arguably the biggest change to Will writing in almost 200 years. Recognising that COVID-19 has made it difficult, if not impossible, for some individuals to meet and validly witness Wills, the Government temporarily amended the Wills Act 1837 to allow for virtual witnessing. This update will be particularly welcome for those who are shielding. Although video-witnessing is legal, this method should only be used when it is not feasible to witness in person. The new legislation will come into force in September 2020 but will be backdated to apply to Wills from 31 January 2020 onwards.
2. Talk us through the steps of signing a will virtually.
In addition to ensuring that the Will is made in writing, by a person over 18, and is written with intention and capacity, it must be validly signed in the presence of two witnesses. Presence can be physical or digital, but the witnesses must watch the testator sign the Will via live video link. Basically, any adult can act as a witness, with the exception of beneficiaries or their spouses/civil partners and the visually impaired. The Will should be physically taken to each of the two witnesses for them to sign, ideally within 24 hours of having been signed by the testator. All parties must sign the same document. When each of the witnesses comes to sign, the testator must be able to see them sign, again via live video link. The parties must have a clear line of sight of each other signing and sign the same document.
3. If a will was signed virtually before September 2020, is it valid?
The legislation will apply to Wills made since 31 January 2020, the date of the first registered Covid-19 case in England and Wales, except in cases where a Grant of Probate has already been issued or the application is already in the process of being administered. If the Will has been validly witnessed in the traditional way or via video and complies with rest of the legal formalities in the Wills Act, it will be legally binding.
4. What are the main issues that could arise if someone chooses to virtually sign a will themselves without expert advice from a solicitor?
Witnessing of Wills via video link is risky and should only be carried out if witnessing via the conventional method is impossible. Virtual witnessing presents greatly increased risks of the Will being challenged, potentially an opportunity for undue influence and could create doubts as to whether the procedure has been followed correctly. To safeguard against uncertainty as much as possible, record a video of the remote witnessing and keep strong evidential records to show procedure was duly followed.
5. What top tips would you give someone looking to have their will virtually signed and witnessed?
- Make sure you and your family are comfortable with virtual witnessing and understand the legal significance of a Will. The rest of the legal formalities (from the Wills Act 1837) still apply.
- Ensure that your chosen witnesses are suitable and have access to a strong internet connection.
- Create and retain robust evidential records, like recordings of the testator signing followed by each of the witnesses signing and a clear written note of what took place.
- Include an attestation clause which details that the Will was witnessed virtually.
- Send the Will to each Witness quickly and repeat the process as swiftly as possible to ensure that your Will is valid.
For more information on any of the points covered, please contact any one of our Wills, Trusts and Probate team.